Patrick v. City of Chi., 14 C 3658

• Decision Date: 28 October 2015
• Docket Number: No. 14 C 3658,14 C 3658
• Citation: 154 F.Supp.3d 705
• Parties: Deon Patrick, Plaintiff, v. City of Chicago, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

154 F.Supp.3d 705

Deon Patrick, Plaintiff,

v.City of Chicago, et al., Defendants.

No. 14 C 3658

United States District Court, N.D. Illinois, Eastern Division.

Signed October 28, 2015

Nicole Nehama Auerbach, Daniel C. F. Wucherer, Stuart Jay Chanen, Valorem Law Group LLC, Chicago, IL, for Plaintiff.

Terrence Michael Burns, Daniel Matthew Noland, Harry N. Arger, Molly E. Thompson, Paul A. Michalik, Dykema Gossett PLLC, Steven Blair Borkan, Graham P. Miller, Misha Itchhaporia, Timothy P Scahill, Whitney Newton Hutchinson, Borkan & Scahill, Ltd., Lisa Marie Meador, Thomas Edward Nowinski, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge

I.INTRODUCTION AND FACTUAL BACKGROUND

In 1995, Deon Patrick was convicted in the Circuit Court of Cook County, Illinois, of two counts of murder, two counts of home invasion, and one count of armed robbery. He was sentenced to life imprisonment without parole. [First Amended Complaint, Dkt. # 92, ¶ 4–5]. The Illinois Appellate Court affirmed the convictions and sentence on July 7, 1998, and five months later the Illinois Supreme Court denied a Petition for Leave to Appeal. Mr. Patrick made several unsuccessful attempts to obtain relief from his convictions, beginning with a pro se Petition for Post–Conviction Relief, (the “Petition”) filed on June 2, 1999, in the Circuit Court of Cook County, claiming ineffective assistance of his trial counsel, John Theis, and his appellate counsel, Linda Kahn. [Dkt. # 95, Exh. B].

The skillfully drafted Petition alleged that Mr. Theis refused to investigate or meet with the individuals whom Mr. Patrick identified as being his alibi witnesses.¹ In fact, the Petition alleged that Mr. Theis told Mr. Patrick he could not raise an alibi defense because of the incriminating statement he gave to the police, even though, the Petition alleged, Mr. Patrick told Mr. Theis that he was coerced into making that statement and that the statement was false. [Dkt. # 95, Exh. B at 14–15]. To the Petition, Mr. Patrick attached a letter he wrote to Ms. Kahn in which he said he had told Mr. Theis that he wanted to testify but that Mr. Theis had talked him out of it, and had “lied” when he said that Mr. Patrick could not testify. The letter went on to say that Mr. Patrick had told Mr. Theis about alibi witnesses, to no avail. [Dkt. # 95, Exh. C]. The Petition alleged that Mr. Theis failed to argue that Mr. Patrick's statement to the police was false and coerced, failed to properly investigate alibi witnesses, and effectively prevented him from testifying at trial. [Dkt. # 95–2, Exh. B at 8, 14–15]. Ms. Kahn, according to the Petition, failed to raise these claims on direct appeal.

Mr. Patrick also attached affidavits to the petition swearing that he told Mr. Theis that he had been coerced by the police into making a false statement, and that he wanted to explain to the jury where he was at the time of the murders. The affidavit went on to say that Mr. Theis told him that he “was not going to testify....” [Dkt. # 95, Exh. D]. In another affidavit, Mr. Patrick swore he had told Mr. Theis prior to trial that he'd been coerced by the police into making a false statement, and that he had alibi witnesses. Mr. Theis, it was alleged, told him that he could not raise an alibi defense because of the statement he gave to the police, and that Mr. Theis refused to interview Audrey Mathews and Kimberly Jefferson, who could provide an alibi. [Dkt. # 95, Exh E]. The Petition and Mr. Patrick's letter and affidavits were not filed under seal.

No protective order was sought or issued in the 1999 post conviction proceedings or over the intervening years, even though Mr. Patrick had counsel as long ago as 2003, and his present counsel have been involved in this case since at least 2013. [Dkt. # 129 at 4]. Thus, the information contained in the Petition and its attachments has been a part of the public record for almost two decades with no effort being made to procure an appropriate protective order from the Circuit Court of Cook County or from the United States District Court for the Northern District of Illinois following the filing of the Patrick Complaint in 2014.

The Petition was followed by a petition for a writ of habeas corpus filed on December 3, 1999, in the United States District Court for the Northern District of Illinois. [Dkt.# # 95–2, 124]. The federal habeas petition was stayed while Mr. Patrick's claims were pending before the Illinois courts. The Petition was dismissed as untimely because it was filed more than three years after the date of the conviction. Counsel was not appointed. [Dkt. # 124]. Mr. Patrick appealed, and the Illinois Appellate Court affirmed the dismissal. Leave to appeal to the Illinois Supreme Court was not sought. The federal habeas petition was denied on October 8, 2003. That ruling was not appealed. [Dkt. # 124].

A decade later, Mr. Patrick sought to vacate his convictions, alleging actual innocence and the withholding of exculpatory evidence by the prosecution at his criminal trial. The Cook County State's Attorney's Office (CCSAO) did not object, and in fact, on January 10, 2014, moved to vacate Mr. Patrick's convictions and subsequently dismissed the charges against him. The CCSAO also did not oppose Mr. Patrick's petition for a Certificate of Innocence, which was granted on January 23, 2014 by the Chief Judge of the Cook County Criminal Court. [Dkt. # 124].² Mr. Patrick then brought the present suit on May 19, 2014, alleging civil rights violations under 42 U.S.C. § 1983 and several supplemental state law claims against the arresting officers, alleging they coerced a false confession from him and fabricated evidence against him. [See Dkt. # # 1, 92].

During discovery, the defendants deposed Mr. Patrick and Mr. Theis and sought to inquire about the conversations (and related topics) that were disclosed in Mr. Patrick's Petition and the attached letter and affidavits. Mr. Theis and Mr. Patrick refused to answer, invoking the attorney/client privilege and work-product protection. [Dkt. # 95 at 2]. The defendants have moved to compel Mr. Patrick and Mr. Theis to answer these and other questions and produce documents related to their conversations at the time of the criminal trial in 1995.

While conceding that these conversations were covered by the attorney-client privilege in the 1995 criminal case, the Defendants insist that Mr. Patrick waived the privilege when, in 1999, he filed his Petition in which he revealed the content of his conversations with Mr. Theis.³ Mr. Patrick does not dispute that the Petition resulted in a waiver of the attorney-client privilege in the proceeding in which it was filed, but argues that the waiver is limited to that proceeding and, in the words of the case on which he relies, is not operative “for all times and all purposes.” Bittaker v. Woodford, 331 F.3d 715 (9th Cir.2003) (en banc ), cert denied, Woodford v. Bittaker, 540 U.S. 1013, 124 S.Ct. 536, 157 L.Ed.2d 424 (2003). [See Dkt. # 124].

The defendants, not unexpectedly, have a very different view of the proper scope of that waiver and of the applicability of Bittaker in the context of this case. If they are right, the waiver has a life beyond the 1995 state court proceeding, and the defendants are entitled to depose Mr. Patrick and Mr. Theis about the conversations disclosed in the Petition in which they discussed alibi witnesses and police coercion of Mr. Patrick. If, however, Bittaker is to be extended to the factual circumstances presented by this case, their motion to compel must be denied. As the briefs point out, this is a question on which there is precious little, if any, direct authority.

II.ANALYSIS

A.The Attorney–Client Privilege and the Law Governing the Questions Raised in This Case

The threshold question is whether state or federal law governs the issue of waiver of the attorney-client privilege—the oldest of the privileges for confidential communications known to the common law. United States v. Jicarilla Apache Nation, 564 U.S. 162, 131 S.Ct. 2313, 2320, 180 L.Ed.2d 187 (2011) ; Hunt v. Blackburn, 128 U.S. 464, 470–71, 9 S.Ct. 125, 32 L.Ed. 488 (1888). The purpose of the privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice....” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The privilege exists where legal advice is sought from a professional legal advisor acting as such, and the communication relates to that purpose and is made in confidence by the client. United States v. Bey, 772 F.3d 1099, 1101 (7th Cir.2014) ; Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314, 318 (7th Cir.1963), cert denied, 375 U.S. 929, 84 S.Ct. 330, 11 L.Ed.2d 262 (1963).

The attorney-client privilege, like all testimonial privileges and all exclusionary rules, comes at a price. Since it makes the search for truth more difficult by preventing disclosure of what is often exceedingly relevant information, the privilege is strictly construed and is limited to those instances where it is necessary to achieve its purposes. University of Pennsylvania v. EEOC, 493 U.S. 182, 185, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) ; Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) ; Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir.2007) ; United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983) (scope of privilege should be “strictly confined within the narrowest possible limits”). Illinois courts subscribe to this view of the privilege as well. Center Partners, Ltd. v. Growth Head GP, LLC, 367 Ill.Dec. 20, 981 N.E.2d 345, 356 (2012). Indeed, in Illinois, it is “the privilege, not the duty to disclose, that is the exception.” Waste Management, Inc. v. International Surplus Lines Ins. Co., 144 Ill.2d 178, 190, 579 N.E.2d...